South African Tribe’s Constitution
A South African tribe has developed a new constitution which applies to all tribe members and provides them various rights. The constitution focuses on reducing the rate of violence between tribe members by imposing penalties on the tribe members who use violence against other members. The purpose of this constitution is to establish a formal process in which the tribe members who use violence are punished for their actions. The members who use violence against other members are imprisoned as per the provisions gave under the constitution. They have to serve a sentence as per the gravity for their actions. They also have to pay damages to the tribe member who suffered loss due to use of violence. The constitution and its provisions comply with Hart’s three-part legal system. Firstly, the regulations of the constitution are clearly established in which there is no place of ambiguity, and they are recognised by every tribe member as per the rules of recognition.
These regulations can also be changed and amend by the parties as per the circumstances, and new provisions can be added in the constitution as well based on the principle of rules of change. Lastly, the procedure of adjudicating a case is clearly given in the constitution, and proper authority is given to hold a trial in which the person is punished if he/she found guilty as per the principle of rules of adjudication. The purpose of developing this constitution is to remove the informality from the process of holding tribe members liable for their actions and defining clear charges which imposed on them if they use violence against other members. It assists in providing proper punishment to tribe members which result in reducing the use of violence in the tribe.
A criminal justice system has established in Nepal which is governed by its constitution which provides provisions regarding holding people liable for their criminal actions. The law upheld factors such as equality in the justice system along with fair and impartial investigations in criminal matters. The Criminal Code Bill established in Nepal focuses on punishing individuals for serious crimes. The penalties imposed by the court for criminal acts include imprisonment as per the type of crime, discharge, payment of damages to the aggrieved parties and life imprisonment. The criminal legal system in Nepal complies with the principles of Hart’s three-part legal system. The regulations given in the act are clear and unambiguous, and they apply to all individuals according to rules of recognition principle. According to the rules of change, the procedure of changing, amending, removing or adding these provisions is given in the constitution of the country as well.
Nepal’s Criminal Justice System
The rules of adjudication principle are present as well because the act provides authorities to different courts to entertain criminal matters. Furthermore, the procedure of adjudication is defined as well, for example, the judicial procedure begins only after submission of the charge sheet in the court. The legal system of Nepal has many similarities to the Australian Legal System. The key penalties for criminal actions are given under the Criminal Act and the Criminal Code Act which include imprisonment, discharge, payment of damages and life imprisonment. The legal system in Australia complies with Hart’s three-part legal system as well. The rules are clear and unambiguous and apply over everyone and the procedure for change in given as well along with the process of adjudication.
The lease agreement is similar to a commercial agreement based on which the parties have the right to terminate the contract based on breach of an essential term. The payment of rent in a lease agreement is considered as an essential term. The amount of rent is considered as the consideration of the contract. In case this essential term is not fulfilled by the parties, then the landlord has the right to terminate the contract. Moreover, if a deed or agreement is formed between the landlord and the tenant based on the lease agreement, then the landlord can demand the loss of bargain if any essential term of such deed is violated by the parties.
Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd is a relevant case in the Australia law because it provided that the lease agreement is considered as any other commercial contract. Based on this fact, if an essential term of the contract is violated by the party, then the contract can be rescinded. In this case, Transit Management Pty Ltd (Transit) leased its property for a period of 15 years to Duffy Bros Fruit Market (Campbelltown) Pty Limited (Duffy). Later, both parties signed a deed to sub-let the property because Duffy finds it difficult to afford the rent of the property alone. The property was sold by Transit to Gumland Property Holdings Pty Ltd (Gumland) along with all the rights of the lease in 2001. In 2002, the sub-lease of the property expired; however, the sub-tenant did not want to extend the lease agreement. Thus, the sub-tenant started to pay only half rent for the property without evacuating the leased property. Gumland sent a notice to Duffy regarding payment of the rent in arrear; however, Duffy ignored such warning.
Lease Agreement Termination
Gumland terminated the lease agreement and filed a lawsuit against Duffy to recover the arrear rent along with interest. Gumland also demanded the loss of bargain from Duffy in the lawsuit. Duffy provided that Gumland has no right to rescind the lease agreement on the fact that it only breached on the term of the contract by not paying the rent on time. Duffy also provided that Gumland cannot claim the loss of bargain from him on breach of term of the deed. The court rejected the arguments of Duffy and accepted the claim of Gumland. It was held that the payment of rent on time is an essential condition of the lease agreement and the party has the right to rescind the entire contract on non-compliance with this term. The court also provided that since the deed formed between the party was a part of the lease agreement, then non-compliance with its terms gives the right to Gumland to claim for the loss of bargain.
Hence, it was held that the landlord has the right to terminate the lease agreement if the tenant failed to pay the rent of the property on time. The landlord can also demand the loss of bargain if an essential term of the deed is not fulfilled by the tenant. The court provided remedies to Gumland by allowing it to terminate the lease agreement and claim the arrear rent money from Duffy with interest along with the loss of bargain.
A person is held liable for fraudulent misrepresentation if a false statement is made by such person to encourage another party to form a contract. The individual making the false statement must know the truth, and the statement is made by him knowingly or without believing the truth or recklessly. The purpose of such statement must be to induce another party to form a contract, and such party must rely on the false statement due to which they suffered a loss. The Australian Consumer Law focuses on protecting customers from unfair trading practices in order to protect their rights. Section 18 of the Competition and Consumer Act provides that a party must not make a statement regarding trade or commerce which is misleading or deceptive or likely to mislead or deceive other parties.
Fletcher v Nextra Australia Pty Ltd case is a relevant case in Australian law because it highlights that parties can be held liable under section 18 of the Australian Consumer Law if they made any statement which is misleading or deceptive or likely to do so. In this case, Mr Fletcher and Nextra Australian Pty Ltd were involved in the newsagency industry. Mr Fletcher was the director and shareholder of newsXpress Pty Ltd. In 2011, Nextra distributed flyers to other parties in order to encourage them to join the services of Nextra Group. Mr Fletcher saw these articles, and he responded to them by posting a blog article in which he criticised the flyers issued by Nextra. A suit was filed against Mr Fletcher by Nextra for breaching section 18 of ACL and making a fraudulent misrepresentation. The court provided in its judgement that Mr Fletcher is liable under section 18 for misleading and deceptive conduct.
Fraudulent Misrepresentation Liability
The blog posted by him erroneously asserted on the fact that the flyer issued by Nextra did not differentiate between those newsagencies that has entered into a contract for full service of Nextra Group and between those who have signed up for cheaper services which were given by News Extra Franchise. Mr Fletcher argued in this court that the opinion given by him in the blog was his own opinion regarding those flyers; however, the court rejected this claim of Mr Fletcher. Mr Fletcher also argued that the blog did not come into the definition of ‘trade and commerce’. However, the court provided that Mr Fletcher is at a key position in the industry and his previous blogs have been used for commercial purposes as well. The blog posted by him was clearly focused on attacking his customers in order to induce other parties to terminate their services and join the services of newsXpress Pty Ltd. Thus, the court held Mr Fletcher liable under section 18 for making misleading and deceptive statements regarding the flyers of Nextra and fraudulently misrepresented his followers.
Hence, Mr Fletcher held liable by the court for breaching section 18 of the Australian Consumer Law for making a misleading and deceptive statement while blogging. The court awarded remedies to Nextra by ordering Mr Fletcher to pay all the costs to the company along with other expenses.
The contract which is formed between two or more parties binds them to its terms. The terms of the contract are considered as legal obligations of parties because they have to suffer legal consequences if they did not comply with them. Thus, they have to ensure that they effectively comply with the contractual terms or else other parties can be held them liable for their actions and enforced the legal terms on them. However, this remedy is only available for parties in case of a valid contract. To constitute a valid contract, it is important that the contracting parties must fulfil all essential elements. An agreement is the first step in forming a valid contract. In order to form an agreement, an offer must be given by the offeror to the offeree regarding doing or not doing specific actions. As given in Carlill v Carbolic Smoke Ball co case, the offer which is given must have the authority to bind the offeror into its terms after receiving the acceptance.
The acceptance must be given by the offeree without changing the terms of the contract. The acceptance must be communicated before the offer is effective because silence did not amount to a valid acceptance as given in the case of Felthouse v Bindley. The parties forming the contract must have the intention to form a legal relationship between them. In Jones v Padavatton case, the court provided that a contract is not formed between parties in social or domestic settings. The parties forming the contract must have the capacity to form a legal relationship between them. A minor, insolvent person or person with unsound mind did not have the capacity to form a legal relationship. A valid consideration is another key element for creating a contract between parties. The consideration of a contract must not be past as given by the court in the case of Re McArdle because a contract cannot be formed in case the consideration is past.
Comparison with Australia’s Legal System
In the given case, Pedro signed a contract with Lisa to purchase her French jewellery business. The contract also included a term which provides that Lisa cannot open another French jewellery business in Australia for two years. The essential elements of a contract are present since both the parties are competent to form a contract. A valid offer was made which was accepted within given time. A valid consideration was present in the contract, and both the parties have the intention to form a legal contract. Thus, a valid contract is formed between Pedro and Lisa. Since Lisa has breached the term of the valid contract formed between her and Pedro, therefore, he can enforce such term on her.
Conclusion
Conclusively, Pedro and Lisa have entered into a valid contract, thus, they are bind by its terms. Pedro has the right to enforce the contractual terms on Lisa in order to shut down her business. The remedies available in this case are payment of damages for the loss suffered by Pedro and specific performance to enforce the term on Lisa by shutting down her business.
References
Hart H, Hart HLA and Green L, The Concept of Law (Oxford University Press, 2012).
Paterson J, Robertson A and Duke A, Principles of contract law (Thomson Reuters (Professional) Austraila, 2012).
Phillips A, ‘Compensation covenants for mining activities run with the land: a win for successive landowners’, (2013) 27 Australian Property Law Bulletin 56-58.
Turner C, Trone J and Gamble R, Concise Australian Commercial Law (Thomson Reuters, 2017).
Carlill v Carbolic Smoke Ball co (1893) 1 QB 256
Felthouse v Bindley (1862) EWHC CP J35
Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153
Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237
Jones v Padavatton (1969) 1 WLR 328
Re McArdle (1951) Ch 669
Competition and Consumer Act 2010
Criminal Act 1914
Criminal Code Act 1995
Criminal Code Bill 2014
ICJ, Serious Crimes in Nepal’s Criminal Code Bill, 2014 (2017) ICJ < https://www.icj.org/wp-content/uploads/2017/03/Nepal-Serious-Crimes-Bill-Advocacy-Analysis-Brief-2017-ENG.pdf>.
Jade, Fletcher v Nextra Australia Pty Ltd (2015) Jade < Jade, Fletcher v Nextra Australia Pty Ltd (2015) Jade < https://jade.io/j/?a=outline&id=388731>.>.
Jade, Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited (2011) Jade < https://www.jade.io/article/61095>.
Time Base, Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52: Misleading and Deceptive Conduct in Blogs (2015) Time Base < https://www.timebase.com.au/news/2015/AT237-article.html>.
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